Did Bush Decide to Talk to Outside Counsel Because He's in Legal Hot Water over the Plame Leak?

Recently, the White House acknowledged that President Bush is talking with, and considering hiring, a non-government attorney, James E. Sharp. Sharp is being consulted, and may be retained, regarding the current grand jury investigation of the leak revealing the identity of Valerie Plame as a CIA covert operative.

(Plame is the wife of Bush critic and former ambassador Joe Wilson.)

This action by Bush is a rather stunning and extraordinary development. The president of the United States is potentially hiring a private criminal defense lawyer. Unsurprisingly, the White House is doing all it can to bury the story, providing precious little detail or context for the President's action.

According to the Los Angeles Times, Bush explained his action by saying, "This is a criminal matter. It's a serious matter," but he gave no further specifics. White House officials, too, would not say exactly what prompted Bush to seek the outside advice, or whether he had been asked to appear before the grand jury.

Nonetheless, Bush's action, in itself, says a great deal. In this column, I will analyze what its implications may be.

The Valerie Plame Grand Jury Investigation

The Plame investigation took a quantum leap in December 2003, when Attorney General John Ashcroft recused himself. Ashcroft's deputy appointed a special counsel, who has powers and authority tantamount to those of the attorney general himself. That means, in practice, that Special Counsel Patrick J. Fitzgerald, the United States Attorney from Chicago, does not report to the Justice Department regarding his investigation. (In this sense, Fitzgerald's position is similar to that of an Independent Counsel under the now-defunct independent counsel statute.)

Those familiar with Fitzgerald's inquiry tell me that the investigative team of attorneys is principally from his office in Chicago, and that they do not really know their way around the workings of Washington. This has resulted in an investigation that is being handled Chicago-style - not D.C.-style. That's significant because in Washington, there is more of a courtesy and protocol toward power than exists in the Windy City.

The Fitzgerald investigation has not made friends with the Washington press corps, many of whom are being subpoenaed to testify before the grand jury. Those journalists with whom I have spoken say they are not willing appeared before any grand jury to reveal their sources. So this issue is headed toward a showdown. And under existing law, a journalist cannot refuse to provide information to a grand jury.

Nor, based on the few existing precedents, can a sitting president refuse to give testimony to a grand jury. And that appears to be the broad, underlying reason Bush is talking with Washington attorney James Sharp.

Reasons the Plame Grand Jury May Want Bush's Testimony

Why might the grand jury wish to hear Bush's testimony? Most of the possible answers are not favorable for Bush.

There is, of course, one totally benign way to view the situation. "It is hard for me to imagine that Pat Fitzgerald is going to be going aggressively after the president," one Washington lawyer told the Los Angeles Times. "My guess is that he feels a need to conduct an interview because he needs to be in a position to say, 'I have done everything that could be done.'" The lawyer added, "If [Fitzgerald] closes the case without an indictment and has not interviewed the president, he is going to be criticized."

But from what I have learned from those who have been quizzed by the Fitzgerald investigators it seems unlikely that they are interviewing the President merely as a matter of completeness, or in order to be able to defend their actions in front of the public. Asking a President to testify - or even be interviewed - remains a serious, sensitive and rare occasion. It is not done lightly. Doing so raises separation of powers concerns that continue to worry many.

Instead, it seems the investigators are seeking to connect up with, and then speak with, persons who have links to and from the leaked information - and those persons, it seems, probably include the President. (I should stress, however, that I do not have access to grand jury testimony, and that grand jury proceedings are secret. But the facts that are properly public do allow some inference and commentary about what likely is occurring in the grand jury.)

Undoubtedly, those from the White House have been asked if they spoke with the president about the leak. It appears that one or more of them may indeed have done so.

If so - and if the person revealed the leaker's identity to the President, or if the President decided he preferred not to know the leaker's identity. -- then this fact could conflict with Bush's remarkably broad public statements on the issue. He has said that he did not know of "anybody in [his] administration who leaked classified information." He has also said that he wanted "to know the truth" about this leak.

If Bush is called before the grand jury, it is likely because Fitzgerald believes that he knows much more about this leak than he has stated publicly.

Perhaps Bush may have knowledge not only of the leaker, but also of efforts to make this issue go away - if indeed there have been any. It is remarkably easy to obstruct justice, and this matter has been under various phases of an investigation by the Justice Department since it was referred by the CIA last summer.

It seems very possible the leaker - or leakers, for two government sources were initially cited by columnist Robert Novak -- may have panicked, covered up his (or their) illegality, and in doing so, committed further crimes. If so, did the President hear of it? Was he willfully blind? Was he himself the victim of a cover-up by underlings? The grand jury may be interested in any or all of these possibilities.

Bush Needs An Outside Attorney To Maintain Attorney-Client Privilege

Readers may wonder, why is Bush going to an outside counsel, when numerous government attorneys are available to him - for instance, in the White House Counsel's Office?

The answer is that the President has likely been told it would be risky to talk to his White House lawyers, particularly if he knows more than he claims publicly.

Ironically, it was the fair-haired Republican stalwart Independent Counsel Kenneth Starr who decimated the attorney-client privilege for government lawyers and their clients - which, to paraphrase the authority Wigmore, applies when legal advice of any kind is sought by a client from a professional legal adviser, where the advice is sought in confidence.

The reason the privilege was created was to insure open and candid discussion between a lawyer and his or her client. It traditionally applied in both civil and criminal situations for government lawyers, just as it did for non-government lawyers. It applied to written records of communications, such as attorney's notes, as well as to the communications themselves.

But Starr tried to thwart that tradition in two different cases, before two federal appeals courts. There, he contended that there should be no such privilege in criminal cases involving government lawyers.

In the first case, In re Grand Jury Subpoenas Duces Tecum, former First Lady Hillary Clinton had spoken with her private counsel in the presence of White House counsel (who had made notes of the conversation). Starr wanted the notes. Hillary Clinton claimed the privilege.

A divided U.S. Court of Appeals for the Eighth Circuit agreed with Starr. The court held that a grand jury was entitled to the information. It also held that government officials -- even when serving as attorneys -- had a special obligation to provide incriminating information in their possession.

In the second case, In re Lindsey, Deputy White House Counsel Bruce Lindsey refused to testify about his knowledge of President Clinton's relationship to Monica Lewinsky, based on attorney-client privilege. Starr sought to compel Lindsey's testimony, and he won again.

This time, Starr persuaded the U.S. Court of Appeals for the District of Columbia Circuit to follow the Eighth Circuit. The court ruled that exposure of wrongdoing by government lawyers fostered democracy, as "openness in government has always been thought crucial to ensuring that the people remain in control of their government."

Based on these precedents, President Bush has almost certainly been told that the only way he can discuss his potential testimony with a lawyer is by hiring one outside the government.

What Might a Private Attorney Advise Bush to Do?

It is possible that Bush is consulting Sharp only out of an excess of caution - despite the fact that he knows nothing of the leak, or of any possible coverup of the leak. But that's not likely.

On this subject, I spoke with an experienced former federal prosecutor who works in Washington, specializing in white collar criminal defense (but who does not know Sharp). That attorney told me that he is baffled by Bush's move - unless Bush has knowledge of the leak. "It would not seem that the president needs to consult personal counsel, thereby preserving the attorney-client privilege, if he has no knowledge about the leak," he told me.

What advice might Bush get from a private defense counsel? The lawyer I consulted opined that, "If he does have knowledge about the leak and does not plan to disclose it, the only good legal advice would be to take the Fifth, rather than lie. The political fallout is a separate issue."

I raised the issue of whether the president might be able to invoke executive privilege as to this information. But the attorney I consulted - who is well versed in this area of law -- opined that "Neither 'outing' Plame, nor covering for the perpetrators would seem to fall within the scope of any executive privilege that I am aware of."

That may not stop Bush from trying to invoke executive privilege, however - or at least from talking to his attorney about the option. As I have discussed in one of my prior columns, Vice President Dick Cheney has tried to avoid invoking it in implausible circumstances - in the case that is now before the U.S .Supreme Court. Rather he claims he is beyond the need for the privilege, and simply cannot be sued.

Suffice it to say that whatever the meaning of Bush's decision to talk with private counsel about the Valerie Plame leak, the matter has taken a more ominous turn with Bush's action. It has only become more portentous because now Dick Cheney has also hired a lawyer for himself, suggesting both men may have known more than they let on. Clearly, the investigation is heading toward a culmination of some sort. And it should be interesting.

______________

This article was first published by findlaw.com and is reprinted with permission.

More Comments:

Peter K. Clarke -
10/9/2007

This piece is not history, or even political science. It is speculation. But, it is well-informed speculation.

When it comes to White House lawyers, John W. Dean knows whereof he speaks, or speculates. Now that his well-researched book, "Worse than Watergate", is out, he is evidently following up on related sub-topics of interest and chosen this as one.

(I have not read Plame's husband's new book, by the way, but he comes across in press interviews as a very intelligent and thorough man, not inclined to turn the other cheek).

In any event, it does seem that bodily refuse is starting to hit the air propulsion system in Dubyaland, and if and when it does, John Dean is a voice well worth listening to.

Andrew D. Todd -
6/12/2004

It depends what you mean by a rogue element. Technically, Oliver North was a rogue element. But all kinds of people dealt with North on the assumption that they were dealing with the United States government. As the saying went, "What did Reagan know, and when did he forget it." As an incident of his operations, North turned _Soldier of Fortune_ magazine into a hiring hall for mercenaries, and because he valued secrecy (or plausible deniability) more than responsibility, it also became a hiring hall for contract killers. SOF became a shopping mart for husbands who wanted to trade their wives in on new models without paying alimony-- a la Henry VIII. Reagan never intended to go into the commercial ladykilling business-- it was simply an unavoidable consequence of his desire that the Sandinista regime should vanish, Boland Amendment or no Boland Amendment. The best evidence is that he expressed this desire in fairly general terms: "who will rid me of this turbulent priest," or words to that effect.

During Watergate, G. Gordon Liddy proposed firebombing the Brookings Institute. He had the minimal good sense to run the idea past John Mitchell and John Dean before actually doing it, but suppose he had been a little bit more of a "self-starter." Firebugs sometimes become mass-murderers by inadvertence.

The natural foci of government insanity are the men who work in small offices in the basement of the West Wing of the White House, men of the Liddy-North type. Such men combine ambition and a precarious hold on effective power in an extraordinary degree. However, experience has shown that once these men do whatever they do, their superiors, presented with a fait accompli, often find a cover-up the lesser of two evils, in the mistaken belief that the cover-up will stay covered up. At law, that is called being an accessory after the fact. Someone will have had to tell John Ashcroft why he had to rein in his gumshoes, and only someone rather senior could tell him that. Probably not the president, probably the other one.

In terms of timetables, the decision to launch the first wave of anthrax attacks has to have taken place within two or three days after September 11, most probably on September 12. At that time, it seemed possible that further attacks were impending. There was a widespread belief that September 11 had rendered constitutional government obsolete, that the president was going to rule by decree under emergency powers for many years. One has to reckon that a given official displayed, say, ten times his normal insanity during that time window.

My economical hypothesis is that orders were issued for an anthrax attack against Saddam Hussein, and that the attack was somehow diverted. On a need-to-know basis, Fort Detrick would not have to be told that the attack was going to be in the United States. If people at Fort Detrick had known about the targets, they would have worried about things like genetic fingerprinting, cross contamination, etc. which would be generally irrelevant if the target were in Baghdad. That is why someone at Fort Detrick handed over one or more vials of powdered anthrax of a type which could be rapidly traced back to Fort Detrick, and a set of written directions for putting it into envelopes. That way, Fort Detrick was out of the picture by the time the first wave of attacks started arriving, and was not in a position to refuse assistance to the second wave.

The "sorcerer's apprentice" quality of the anthrax attacks _is_ characteristic of the Bush White House. The Administration has a demonstrated propensity for ignoring or overriding expert advice, with disastrous consequences.

Patrick Meade -
6/11/2004

I don't think Bush would authorize Anthraz attacks through the mail. That would be orders of magnitude greater in the crime arena than knowing that someone slipped a name to the press or even lying about WMDs or anything else. You're talking about the president authorizing a major domestic terrorist attack.

I doubt Bush would have the guts to do that. If he were eventually found guilty, even if it took 10 or 20 years, it would be entirely reaosnable to expect him to receive the death penalty. Honestly, I don't think any politician would be quite that insane.

Now, that doesn't mean that it didn't originate somewhere inside our government -- maybe it did -- but I think it would still be a rogue element, not the sort of thing that the White House would be involved with.

Someone like Bush doesn't have to worry about war crimes investigations and so on because he knows that a significant number of Americans would stand by him even if he was caught telling the CIA to rape prisoners with curling irons. Many Americans would be HAPPY to argue that this is what it takes to fight terror. But if he were involved in the Anthrax attacks, I can't imagine a single member of the Republican party standing by him. At least no one outside of Texas.

Andrew D. Todd -
6/10/2004

Let us add another possibility-- the anthrax attacks.

1. By genetic fingerprinting, the anthrax used in the anthrax attacks has been traced back to an army weapons laboratory. The FBI's response has been to seek a "mad scientist" among the handful of trusted men with security clearances who had access to the right kind of anthrax. These efforts, carried to extravagant lengths, have ultimately yielded-- nothing. The alternative hypothesis is a "good soldier" -- many of the "persons of interests" will be regular army majors and colonels-- who might have obeyed orders from constituted authority and not asked questions.

2. The anthrax attacks occurred in two waves. The first wave was directed at liberal news media, and at a publisher of supermarket scandal sheets, whose sole excursion into the political was to commit lese majestie by publishing scandal about the president's daughter. The second wave was directed at congress, and more precisely at two Democratic senators who were engaged in delaying and obstructing the passage of the USA Patriot Act. The USA Patriot Act was passed in the false belief that the anthrax attack had been launched by Arabs. The targets were, in short, the political opponents of George W. Bush, and the apparent motive was to intimidate them into silence. Only one of the victims, Bob Stevens at American Media, the scandal sheet publisher, can be said to have been an intended target. The other victims were innocent bystanders, mostly postal workers.

3. Most of the above facts were known by the summer of 2002. And there the matter has rested for two years. In that time, the administration has demonstrated its propensities. Well, then, can anyone show me evidence of such high ethical standards, or even of such good judgment and common sense, as would refute the possibility of an Anthraxgate? J'Accuse!

------------

To research the anthrax attacks, the starting point is Ed Lake's _The Anthrax Cases_. Lake has done the legwork of assembling a substantial clippings file, available on-line.

Ken Melvin -
6/7/2004

Marc "Adam Moshe" Bacharach -
6/7/2004

Ken,
I do not disagree with the thrust of your post, but I find it unlikely Bush would risk the political embarassment of hiring a lawyer if he did not need one. Even if the UN takes some legal action, it is unlikely to be against Bush individually, rather than the United States. In any event, who would enforce such a ruling? My point is that I find it unlikely that Bush would have anything to fear about the UN, at least legally. That is more a political threat than anything else. The only legal problem Bush has in all likelihood is this Plame leak.

Ken Melvin -
6/7/2004

There is the possibility that the meeting had little or naught to do with Plame and a whole lot to do with war crimes. Gonzales and Yoo were wrong on the Geneva Conventions bit. I think that there may well be charges coming out of the UN and this is what little bush is most scaired of.